Terms and Conditions for Subscription Software and Related Services (“TOS”)

Last Updated: Jan. 12, 2015

IMPORTANT – BY CLICKING THE “I ACCEPT” BUTTON, OR OTHERWISE ACCEPTING THESE TOS THROUGH A SALES ORDER (AS DEFINED BELOW) OR BY USING USTREAM’S SUBSCRIPTION SOFTWARE AND RELATED SERVICES (AS DEFINED BELOW), YOU AGREE TO FOLLOW AND BE BOUND BY THESE TOS. IF YOU ARE ENTERING INTO THESE TOS ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TOS, AND IN SUCH EVENT, “YOU” AND “YOUR” AS USED IN THESE TOS SHALL REFER TO SUCH ENTITY.

Ustream, Inc. (“Ustream”, “we”, “us”, or “our”) offers a variety of services and products related to the sharing and viewing of live and recorded video and audio content and associated data. Unless otherwise agreed to in writing by you and Ustream, these TOS apply to and govern your use (including any trial use) of the following software and services products: our Pro Broadcasting software, our Align software, our Producer software, our LiveAd Player software, and our Gallery Ad Management software; optional and add-on features, modules and tools associated with our software; our software maintenance and support services; personal services performed by Ustream personnel or otherwise on behalf of Ustream related to video production, encoding, distribution, or promotion; and our other subscription software and related professional solutions. For the purposes of these TOS, we shall collectively refer to the foregoing services and products as the “Subscription Software and Related Services.”

These TOS do not apply to basic features and content available on our website, located at http://www.ustream.tv and http://www.ustream.com (collectively the “Site”), our mobile applications (each, an “App”), and free versions of our broadcasting service, as well as Premium Ustream memberships, which allow you to view content free of advertising. For the purposes of these TOS, we shall collectively refer to the foregoing services and products as the “Basic Services.” Our Basic Services are governed by our Terms and Conditions for Basic Services. Notwithstanding the foregoing, however, to the extent that any of our Basic Services are included as part of or incorporated into our Subscription Software and Related Services, your use of those Basic Services will be subject to the Terms and Conditions for Basic Services.

Please read these TOS carefully before accessing or using the Subscription Software and Related Services, as these TOS constitute a binding legal agreement between you and Ustream. The Ustream Privacy Policy" and the Ustream Acceptable Use Policy are incorporated herein by reference and form a part of these TOS. Some of our Subscription Software and Related Services may require you to enter into a separate sales or purchase order (“Sales Order”) with us that incorporates these TOS by reference. In the event of any conflict or inconsistency between the terms and conditions of the Sale Order and these TOS, the Sales Order shall control and govern. IF YOU DO NOT AGRE

“You” and “your” in these TOS refer to the individual or entity that has ordered the Subscription Software and Related Services and those individuals authorized by you or on your behalf to use Subscription Software and Related Services, as permitted pursuant to these TOS and your Sales Order.

Eligibility and Registration.

If you wish to access certain Subscription Software and Related Services, you will be required to create an account. You must be at least 18 years of age to use our Subscription Software and Related Services.

When you register with Ustream and set up your Subscription Software accounts, you agree to provide Ustream with accurate, true, current, and complete information. You agree to promptly update your information for your Subscription Software account(s) on an ongoing basis. You authorize Ustream, directly or through third parties, to make any inquiries we consider necessary or appropriate to verify your information for your Subscription Software account(s). You agree that you will not use false identities or impersonate any other person or use a username or password that you are not authorized to use.

You are responsible for safeguarding your account administration password(s) and you agree not to disclose your password(s) to any third party. You are solely responsible for any activities or actions taken under your password(s), whether or not you have authorized such activities or actions. You will immediately notify us of any unauthorized use of your password. Ustream reserves the right to require you to change your username or password for any reason and at any time.

Modification.

Ustream reserves the right, at its sole discretion, to modify, discontinue or terminate all or a portion of the Subscription Software and Related Services, or to modify these TOS, at any time and without advance notice. If we modify these TOS, we will update the “Last Updated” date at the top of these TOS. If any modified terms and conditions are not acceptable to you, your sole remedy is to cease using the Subscription Software and Related Services. By continuing to access or use the Subscription Software and Related Services after Ustream makes any such revision, you agree to be bound by the revised TOS.

Fees and Payment.

Each of our Subscription Software and Related Services offerings have defined fees for use and overages (collectively, the “Fees”), some of which may be recurring on a monthly, quarterly, annually, or some other period of time. You will have an opportunity to review and accept the Fees and billing cycle for your chosen Subscription Software and Related Services either through our Site or as part of your Sales Order. Ustream reserves the right to change the Fees and/or billing cycles for our Subscription Software and Related Services at any time, but any such changes will only apply prospectively.

All Fees are due in advance of receiving any services. Notwithstanding the foregoing, if you have a current Sales Order with Ustream your Fees will be invoiced upon you signing your Sales Order and are due and payable within fifteen (15) days of the invoice date, unless otherwise set forth in the Sales Order. Subsequent payments for the services will be invoiced in advance (except for any overages, which will be invoiced monthly in arrears unless otherwise stated) and are due and payable within fifteen (15) days of invoice date or the monthly, quarterly or annual billing date, as applicable. All invoices will be sent to the billing contact and address information shown on your Sales Order. Unless otherwise set forth in your Sales Order, all Fees are recurring (until terminated) and charged to you regardless whether or not you use the Subscription Software and Related Services. If you choose to enroll in Subscription Software and Related Services that have recurring Fees, you agree that Ustream may automatically charge the recurring Fees to your chosen payment method at the beginning of each billing cycle.

The services you order will continue in effect unless and until you cancel your subscription or the account or service is otherwise suspended or discontinued pursuant to these TOS. You must cancel your subscription at least thirty days before it renews in order to avoid a charge for the next billing cycle. UNLESS OTHERWISE SET FORTH HEREIN OR IN A SALES ORDER, ALL FEES ARE NON-REFUNDABLE.

If you have a current Sales Order with Ustream all Fees not paid to Ustream by you within 30 days of when such Fees become due and payable, shall be subject to the lesser of a finance charge of 1.5% per month interest, or the maximum amount permitted by law. If you fail to meet your payment obligations as set forth herein or in a Sales Order, Ustream reserves the right to terminate your relevant Subscription Software account(s), convert your account to a Basic Services Ustream account (upon which advertisements will appear on your User Submissions), charge you an overage or other fees, or take any other action which we deem to be reasonable.

Termination and Effect of Termination

Termination By Ustream. Without limiting other any remedies Ustream may have in law or in equity, or for any commercially reasonable reason, Ustream reserves the right to immediately terminate or suspend your account or your access to any or all of the Subscription Software and Related Services and remove any material (including User Submissions (as defined below)) from the Subscription Software and Related Services or our servers at any time with or without cause and without notice. This includes, without limitation, terminating or suspending your account if the charges to your credit card or our Fees are refused or otherwise not paid for any reason. If Ustream terminates all or a portion of your Subscription Software and Related Services prior to the completion of the term of your agreement with Ustream for such services stated online or in a Sales Order (“Term”), you are still liable for paying all outstanding Fees and charges incurred prior to termination and your sole remedy against Ustream is a pro-rata refund of the purchase price paid in advance (if any) for the unavailable service. Notwithstanding the foregoing, if termination of your account or access to services is as a result of your breach of these TOS or a Sales Order, Ustream shall have no liability to you and you shall be solely liable for the full amount of any Fees owed and contracted for with us and any outstanding charges relating to your account.

Termination By You. You may terminate your Ustream account(s) at any time and for any reason by contacting us at billing@ustream.tv or, if available to you, selecting “Close Account” in your account preferences. Subscription Software and Related Services Fees are non-refundable and if you choose to terminate your Subscription Software and Related Services prior to the end of the Term (excluding a termination due to a Force Majeure Event (defined below) that exceeds thirty (30) days). You agree to pay any outstanding Fees contracted for under your agreement with Ustream and/or outstanding charges relating to your account.

Effect of Termination. Once your Subscription Software and Related Services account is terminated, and unless otherwise agreed by you and Ustream, your account will be converted to a Basic Services account and your continued use (including the continued hosting of your User Submissions on our servers) will be subject to the Terms and Conditions for Basic Services. Ustream will have no obligation to maintain any information stored in our database related to your account or to forward any information to you or any third party, including User Submissions. Upon termination, all licenses and other rights granted to you by these TOS will immediately cease. Ustream is not liable to you or any third party for any alleged or actual damages, losses, or claims related to the termination of the Subscription Software and Related Services or termination of your use of the Subscription Software and Related Services.

Upgrading or Downgrading Your Account.

You may upgrade or downgrade your Subscription Software and Related Services account if available to you through your Ustream Dashboard, available at http://www.ustream.tv/dashboard, although in some instances, you may need to contact us directly.

Upgrades will be applied retroactively to the beginning of the current billing cycle. Any usage in the current billing cycle will be charged under the new plan rates. At the time you choose to upgrade, you will be charged the difference between your old plan rate and the new plan rate. Your billing date will remain the same as your original billing date.

Downgrades will not take effect until the commencement of the next billing cycle. On your next billing date, you will be charged (if at all) under the new plan rates. You will not be refunded for any unused portion of the current billing cycle. Downgrading your plan may cause loss of features or functionality. Ustream will not be liable to you or any third party for any downgrading and Ustream will have no obligation to maintain any information stored in our data centers related to your account or to forward any information to you or any third party.

Grant of License; Intellectual Property Rights.

Definitions. “Content” as used in these TOS means, collectively, the text, data, graphics, images, logos, trademarks, photos and video files, organization, compilation and overall look and feel of Ustream’s offerings made available by Ustream through the Subscription Software and Related Services, but excluding User Submissions. “User Submissions” as used in these TOS means, collectively, the text, data, graphics, images, photos and video files and other content and information which Ustream members or our other third-party licensors stream, post, upload and otherwise submit to the Subscription Software and Related Services, including without limitation in broadcast chats, discussion groups, message boards and Ustream member-created profile pages. Ustream reserves the right to remove and permanently delete any Content or User Submissions without notice. We have the right to cooperate with any law enforcement authorities or court order requesting or directing us to disclose the identity of anyone posting publishing or otherwise making available any User Submissions, emails or other materials that are believed to violate these TOS.

We and our licensors reserve all rights not expressly granted in and to the Subscription Software and Related Services and the Content. We grant to you a limited, revocable, non-exclusive, non-transferable, non-sublicenseable license to access and use the Content, User Submissions and Subscription Software and Related Services solely through the provided functionality of the Subscription Software and Related Services and as permitted pursuant to these TOS, the terms, conditions, limits and restrictions of any other applicable agreement you have with us, and solely during the Term. Depending on the nature of the Subscription Software and Related Services offered, the foregoing license may be granted on a personal, company- (or other legal entity-) wide, or other basis.

We and our licensors own all right, title and interest, including all worldwide intellectual property rights in the Subscription Software and Related Services and Content contained therein, other than your User Submissions.

YOU AGREE THAT YOUR USER SUBMISSIONS OR YOUR USE OF THE SUBSCRIPTION SOFTWARE AND RELATED SERVICES WILL NOT INFRINGE COPYRIGHTED WORKS OR OTHERWISE VIOLATE, OR ATTEMPT OR ASSIST IN THE VIOLATION OF, THE INTELLECTUAL PROPERTY RIGHTS OF US OR ANY THIRD PARTY. If you are a copyright owner, or are authorized to act on behalf of one or authorized to act under any exclusive right under copyright, please refer to our Copyright Policy.

You agree that you will not remove, alter or conceal any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Subscription Software and Related Services, Content, third-party User Submissions or related products and services, except as explicitly permitted by us in writing in advance. You will not copy, reproduce, modify, adapt, prepare derivative works based on, perform, display, publish, distribute, transmit, broadcast, sell, license or otherwise exploit the Subscription Software and Related Services, Content, User Submissions (other than your own User Submissions) without our prior written consent or the respective licensors of the Content or User Submissions. Notwithstanding the foregoing, you may distribute and download certain Content or third-party User Submissions, solely where we make the means for distribution or download of such Content or User Submissions possible and solely to the extent such distribution or downloading is done in accordance with these TOS. Further, you agree that we may use your trademark, service mark, and/or logo solely during the Term to reference you as one of our customers and not in any press release, and in accordance with any trademark guidelines you provide to us.

You are solely responsible for encoding your User Submissions to our technical specifications, uploading your User Submissions to an entry point designated by us, and for meeting any other technical requirements in connection with your use of the Subscription Software and Related Services.

You agree that you will have sole control over and responsibility for your User Submissions, including without limitation, obtaining any necessary licenses, permissions, releases, and clearances.

User Submissions.

We do not claim ownership rights in your User Submissions. However, by uploading, streaming, submitting, emailing, posting, publishing or otherwise transmitting any User Submissions to Ustream, you hereby grant Ustream a non-exclusive, worldwide, royalty-free, sublicensable, perpetual and irrevocable right and license to use, reproduce, modify, adapt, prepare derivative works based on, perform, display, publish, distribute, transmit, broadcast and otherwise exploit such User Submissions in any form, medium, device or technology now known or later developed in accordance with these TOS and your agreement with us for Subscription Software and Related Services. You represent and warrant that you own or have the necessary licenses, rights, consents and permissions to grant the foregoing licenses to Ustream. You agree to execute and deliver such documents and provide all assistance reasonably requested by Ustream to give to Ustream the full benefit of the rights granted to Ustream by you.

You acknowledge and agree that Ustream may, at its option, establish limits concerning your Subscription Software account(s), including without limitation the number and/or types of unique users, concurrent seats, and/or other types of log-ins and/or passwords available for your Subscription Software account(s), the number of Viewer Hours that may be used in any month or other period within the Term and/or other bandwidth-related limitations or restrictions, the number of Channel Managers assigned to your Subscription Software account(s) and/or particular Channel(s), the maximum number of days that User Submissions will remain on the Site and App, the maximum size of any files that may be stored on or uploaded to the Site and App, and the maximum disk space that will be allotted to you for the storage of User Submissions on Ustream’s servers. User Submissions that exceed any established storage limitation at any time may be deleted by Ustream, with or without advance notice to you. Ustream will have no responsibility or liability for User Submissions that are deleted for exceeding any established limit.

If you exceed any of the foregoing or other limits and/or restrictions, Ustream reserves the right to terminate your applicable Subscription Software and Related Services account(s), convert such account(s) to a Basic Services Ustream account(s) (upon which advertisements will appear on User Submissions), charge you an overage or fees, or take any other action which we deem to be reasonable.

Ustream has no obligation to monitor User Submissions for any purpose and, as a result, is not responsible for the accuracy, completeness, appropriateness, legality or applicability of the User Submissions or anything said, depicted or written by Ustream members, including, without limitation, any information obtained by using the Basic Services or Subscription Software and Related Services. Ustream does not endorse any User Submissions or any opinion, recommendation, or advice expressed therein and you agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against Ustream with respect thereto.

Disclaimer of Warranties.

YOUR ACCESS TO AND USE OF THE CONTENT, USER SUBMISSIONS AND THE SUBSCRIPTION SOFTWARE AND RELATED SERVICES ARE AT YOUR SOLE DISCRETION AND RISK. THE SUBSCRIPTION SOFTWARE AND RELATED SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND. USTREAM EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, RELATING TO THE SUBSCRIPTION SOFTWARE AND RELATED SERVICES, INCLUDING WITHOUT LIMITATION THE WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF PROPRIETARY RIGHTS, COURSE OF DEALING OR COURSE OF PERFORMANCE. USTREAM DISCLAIMS ANY WARRANTIES: (I) REGARDING THE ACCURACY, RELIABILITY, TIMELINESS AND PERFORMANCE OF THE SUBSCRIPTION SOFTWARE AND RELATED SERVICES; (II) THAT THE SUBSCRIPTION SOFTWARE AND RELATED SERVICES AND YOUR ACCESS THERETO WILL BE UNINTERRUPTED, ERROR-FREE OR THAT ANY ERRORS OR DEFECTS WILL BE CORRECTED; OR (III) THAT THE SUBSCRIPTION SOFTWARE AND RELATED SERVICES WILL MEET YOUR NEEDS OR REQUIREMENTS OR THE NEEDS OR REQUIREMENTS OF ANY OTHER PERSON. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM USTREAM, WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TOS. SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES. ACCORDINGLY, SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.

Limitation of Liability.

IN NO EVENT WILL USTREAM OR ITS AFFILIATES, OR ANY OF ITS OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS, BE LIABLE TO YOU FOR ANY DAMAGES WHATSOEVER, INCLUDING WITHOUT LIMITATION, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH YOUR ACCESS TO OR USE OF THE CONTENT AND THE SUBSCRIPTION SOFTWARE AND RELATED SERVICES, WHETHER THE DAMAGES ARE FORESEEABLE AND WHETHER OR NOT USTREAM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. USTREAM SHALL NOT BE LIABLE FOR (I) ANY FAILURE OR PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS OR LINE OR SYSTEM FAILURE (INCLUDING LOST PROFITS, LOSS OF BUSINESS OR DATA, BUSINESS INTERRUPTION, AND DAMAGES THAT RESULT FROM INACCURACY OF THE INFORMATION OR INCONVENIENCE, DELAY, OR LOSS OF THE USE OF THE SUBSCRIPTION SOFTWARE AND RELATED SERVICES); (III) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE CONTENT, USER SUBMISSIONS AND SUBSCRIPTION SOFTWARE AND RELATED SERVICES; (IV) ANY BUGS, VIRUSES, TROJAN HORSES, OR OTHER MALICIOUS CODE WHICH MAY BE TRANSMITTED TO OR THROUGH THE CONTENT OR SUBSCRIPTION SOFTWARE AND RELATED SERVICES BY ANY THIRD PARTY; (V) FOR ANY BREACH OF SECURITY ASSOCIATED WITH THE TRANSMISSION OF INFORMATION THROUGH THE CONTENT AND THE SUBSCRIPTION SOFTWARE AND RELATED SERVICES, OR FOR ANY INFORMATION OBTAINED OR DOWNLOADED FROM THE CONTENT AND THE SUBSCRIPTION SOFTWARE AND RELATED SERVICES, OR OTHERWISE ARISING OUT OF THE USE OF THE SAME; OR (VI) DEFAMATORY, OFFENSIVE, INAPPROPRIATE, OR ILLEGAL CONTENT OR USER SUBMISSIONS OR THE CONDUCT OF ANY THIRD PARTY. THE FOREGOING LIMITATION OF LIABILITY WILL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION AND IN NO EVENT WILL USTREAM’S CUMULATIVE LIABILITY TO YOU EXCEED ONE-QUARTER OF YOUR ANNUAL CONTRACT VALUE (OR ONE-QUARTER OF YOUR FULL CONTRACT VALUE, IF SHORTER THAN ANNUAL) THAT YOU HAVE ACTUALLY PAID USTREAM DURING THE SIX- (6-) MONTH PERIOD PRECEDING THE DATE SUCH LIABILITY AROSE.

Indemnification.

You agree to defend, indemnify, and hold harmless Ustream and its affiliates, and each of their officers, directors, employees and agents, from and against any claims, liabilities, damages, losses, and expenses, including without limitation reasonable attorney’s fees and costs, arising out of or in any way connected with (i) your access to or use of the Subscription Software and Related Services; (ii) a material breach or violation by you of these TOS or a Sales Order (if applicable); (iii) any claim that any of your User Submissions caused damage to a third party, including without limitation claims that any of your User Submissions are infringing; or (iv) your violation of any third-party right, including without limitation any intellectual property right, publicity, confidentiality, property or privacy right.

Export/Import.

You may not use, export, re-export, import, or transfer any App or any other downloadable Ustream software or use the Subscription Software and Related Services except as authorized by United States law, the laws of the jurisdiction in which you obtained the App, downloadable Ustream software or Subscription Software and Related Services, and any other applicable laws. In particular, but without limitation, no App, nor any other downloadable Ustream software and Subscription Software and Related Services may be used in, or transferred, or otherwise exported or re-exported to: (a) any United States embargoed countries (e.g., Cuba, Iran, North Korea, Sudan, or Syria) or to or by a national or resident thereof; or (b) any person or entity on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce's Denied Persons List. By using any App, other downloadable Ustream software, or Subscription Software and Related Services, you represent and warrant that you are not located in or a resident or national of any such country or on any such list. You also will not use any App, other downloadable Ustream software or Subscription Software and Related Services for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons.

Government End Users.

The Ustream App, other downloadable Ustream software, and related documentation are “commercial items” as that term is defined in FAR 2.101, consisting of “commercial computer software” and “commercial computer software documentation,” respectively, as such terms are used in FAR Subpart 12.212 and DFARS 227.7202. If the Ustream App, other downloadable Ustream software, and related documentation are being acquired by or on behalf of the U.S. Government, then, as provided in FAR Subpart 12.212 and DFARS 227.7202-1 through 227.7202-4, as applicable, the U.S. Government’s rights in the Ustream App, other downloadable Ustream software and related documentation will be only those specified in these TOS.

Third-Party Links.

The Subscription Software and Related Services may provide links to third-party websites or resources or content. You acknowledge and agree that Ustream is not responsible or liable for the availability or accuracy of, and Ustream does not endorse, such websites or resources or the content, products, or services on or available from such websites or resources. You are solely responsibility for and assume all risk arising from your use of any such websites or resources.

Feedback and Independent Development.

Your feedback is welcome and encouraged. You may submit feedback by emailing us at feedback@ustream.tv or via other portions of the Site. You agree, however, that if you elect to provide suggestions, ideas, proposals, concepts or other feedback to us (whether written, oral, or in any other form or manner) in connection with these TOS or use of our Site or Subscription Software and Related Services (“Feedback”), you acknowledge and agree that we have no obligation (whether of confidentiality, compensation or otherwise) with respect to such Feedback and we will be free to use and exploit the same in any manner without restriction of any kind. You acknowledge and agree that all Feedback will be the sole and exclusive property of Ustream. You hereby irrevocably transfer and assign to Ustream all of your right, title and interest in and to all Feedback, including all intellectual property rights therein. At Ustream’s request and expense, you will execute documents and take such further acts as Ustream may reasonably request to assist Ustream to acquire, perfect and maintain its intellectual property rights and other legal protections for the Feedback. Further, you acknowledge and agree that Ustream is engaged in creating and developing its own programs, plans and projects so it is possible that we are already independently developing products, services, plans and projects that are similar to and/or compete with the applications, services, products, concepts, systems or techniques contemplated by or embodied in any Feedback or compensate you or provide you with any input or response with regard to your Feedback.

General.

No Assignment. You will not assign these TOS or assign any rights or delegate any obligations hereunder, in whole or in part, whether voluntarily or by operation of law, without the prior written consent of Ustream. Any purported assignment or delegation by you without the appropriate prior written consent of Ustream will be null and void. Ustream may assign these TOS or any rights hereunder without your consent.

Relationship of the Parties. No agency, partnership, joint venture, employee or employer relationship is intended or created by these TOS. Each party is independent and acts independently of the other. Each party will be solely responsible for their own costs and expenses incurred in the performance of their obligations under these TOS and their compliance therewith.

Severability and Waiver. In the event that any provision in these TOS is held to be invalid or unenforceable, the remaining provisions will remain in full force and effect. The failure of Ustream to enforce any right or provision of these TOS will not be deemed a waiver of such right or provision.

Survival. The following Sections of these TOS, along with any other provisions which impose an obligation after termination or expiration of these TOS, shall survive the termination and expiration of these TOS: Sections 3, 4, 6, 7, 8, 9, 10, 11, 14, and 15.

Force Majeure. Ustream will not be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder on account of events beyond its reasonable control, which may include, without limitation, denial-of-service attacks, strikes, shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, terrorism, governmental action, labor conditions, earthquakes, material shortages, extraordinary Internet congestion or extraordinary connectivity issues experienced by major telecommunications providers and unrelated to our infrastructure or connectivity to the Internet, or failure at our co-location facility, (each a “Force Majeure Event”). Upon the occurrence of a Force Majeure Event, Ustream will be excused from any further performance of its obligations effected by the Force Majeure Event for so long as the event continues.

Governing Law. These TOS and the relationship between you and Ustream will be governed by the laws of the State of California without regard to its conflict of law provisions. You and Ustream agree to submit to the personal and exclusive jurisdiction of the courts located in San Francisco County, California.

Notice. Any notice or other communication to be given hereunder will be in writing and given (a) by Ustream via email (in each case to the address that you provide in your account registration or on your Sales Order (as applicable)), (b) by Ustream via a posting on the Site, App, or relevant portion of the Subscription Software and Related Services or (c) by you via email to billing@ustream.tv or to such other addresses as we may specify in writing. The date of receipt will be deemed the date on which such notice is transmitted.

Questions. If you have questions about these TOS or would like to request a copy of these TOS or other records relating to these TOS or your use of the Subscription Software and Related Services, please contact us at billing@ustream.tv or by sending a written request to Ustream, Inc. at 410 Townsend Street, Suite 400, San Francisco, CA 94107.

Terms and Conditions for Basic Services

Last Updated: Feb. 27, 2014

Ustream, Inc. ("Ustream", "we" or "us") provides content streaming and social networking services that enable the sharing of live and recorded video and audio content and chat via the Internet, mobile and other data delivery means through use of Ustream’s proprietary video player service and syndication platform (any and all of the foregoing (the "Services") and our websites accessible at www.ustream.tv and www.ustream.com (collectively the "Site"). The Services include Ustream’s proprietary embeddable video players (each a "Ustream Player"), the Ustream channels, our software applications and related technology (including any updates, new versions or new releases thereof) including, but not limited to, our Viewer, Broadcaster and Recorder Applications (each a "Ustream Application"), and any other products and services offered by Ustream via the Site and Services.

Please read the following important terms and conditions ("Terms of Service") carefully. These Terms of Service, and the Ustream Privacy Policy and the Ustream Acceptable Use Policy, both incorporated herein by reference, govern your access to and use of the Site and Services, including any content, information, products or services therein. These Terms of Service are a legal agreement between you and Ustream and apply to you whether you are a Member (defined below) or a visitor just browsing the Site (collectively, "Ustream Users").

Certain areas of the Site and Services (and your access to or use of Content (defined below)) may have different terms and conditions posted or may require you to agree with and accept additional terms and conditions. If there is a conflict between these Terms of Service and terms and conditions posted for a specific area of the Site, Services or Content, the latter terms and conditions will take precedence with respect to your use of or access to that area of the Site, Services or Content.

YOU UNDERSTAND THAT BY CLICKING THE "I AGREE" BUTTON, OR BY USING THE SITE, SERVICES (INCLUDING ANY CONTENT PROVIDED THEREIN), OR YOUR ACCOUNT, OR BY DOWNLOADING OR POSTING ANY CONTENT FROM OR ON THE SITE OR THROUGH THE SERVICES, YOU ARE AGREEING TO BE BOUND BY THESE TERMS OF SERVICE. IF YOU DO NOT ACCEPT THESE TERMS OF SERVICE IN THEIR ENTIRETY, YOU MAY NOT ACCESS OR USE THE SITE, SERVICES OR CONTENT. If you agree to these Terms of Service on behalf of a business, you represent and warrant that you have the authority to bind that business to these Terms of Service and your agreement to these terms will be treated as the agreement of the business. In that event, "you" and "your" will refer and apply to that business.

Eligibility and Registration.

In order to access certain features of the Site and Services, and to post User Submissions, you will have to create a Ustream account and become a "Member". To become a Member you must be at least 13 years of age and only Members that are at least 18 years of age may purchase access to Premium Content (defined below) as further described in Section 6. If you are not a Member you may browse all areas of the Site or use the parts of the Services that are not limited to Members only.

When you register, you will be asked to choose a username and a password. You are responsible for safeguarding your password and you agree not to disclose your password to any third party. You agree that you will be solely responsible for any activities or actions taken under your password, whether or not you have authorized such activities or actions. You will immediately notify Ustream of any unauthorized use of your password. You agree that the information that you provide to us upon registration, and at all other times will be true, accurate, current and complete. Without limiting any other terms of this Terms of Service, you may not use false identities or impersonate any other person or use a username or password that you are not authorized to use. Ustream reserves the right to require you to change your username for any reason and may do so at any time.

If you become a Member you consent to the use of: (a) electronic means to complete these Terms of Service and to provide you with any notices given pursuant to these Terms of Service; and (b) electronic records to store information related to these Terms of Service or your use of the Site and Services. Our Privacy Policy contains information about our policies and procedures regarding the collection, use and disclosure of information we receive from Ustream Users.

Modification.

Ustream reserves the right, at its sole discretion, to modify, discontinue or terminate the Site and Services, or to modify these Terms of Service, at any time and without advance notice. However, changes made to these Terms of Service will not apply to you to the extent that (i) the changes concern matters which are the subject of an actual dispute between you and Ustream as of the date the changes take effect and (ii) Ustream has actual notice of the dispute as of the date the changes take effect. If we modify these Terms of Service, we will post the modification on the Site or within the Services or provide you with notice of the modification. We will also update the "Last Updated Date" in these Terms of Service. If any modified terms and conditions are not acceptable to you, your sole remedy is to cease using the Site and Services, and if applicable, cancel your Ustream account. By continuing to access or use the Site and Services after Ustream makes any such revision, you agree to be bound by the revised Terms of Service.

Termination and Ustream Account Cancellation.

Without limiting other remedies, Ustream may immediately terminate or suspend your access to the Site and Services and remove any material (including User Submissions) from the Site or our servers, in the event that you breach these Terms of Service. Notwithstanding the foregoing, we also reserve the right to terminate the Site, Services or your access thereto at any time and for any reason. In addition, Ustream may notify authorities or take any actions it deems appropriate, without notice to you, if Ustream suspects or determines, in its own discretion, that you may have or there is a significant risk that you have: (i) failed to comply with any provision of these Terms of Service or any policies or rules established by Ustream; or (ii) engaged in actions relating to or in the course of using the Site or Services that may be illegal or cause liability, harm, embarrassment, harassment, abuse or disruption for you, Ustream Users, Ustream or any other third parties or the Site or Services.

You may terminate your Ustream account at any time and for any reason by selecting "Close Account" in your account preferences. Upon any termination by a Member, the related account will no longer be accessible.

After any termination, you understand and acknowledge that we will have no further obligation to provide the Services. Upon termination, all licenses and other rights granted to you by these Terms of Service will immediately cease. Ustream is not liable to you or any third party for termination of the Services or termination of your use of the Services. UPON ANY TERMINATION OR SUSPENSION, ANY INFORMATION (INCLUDING USER SUBMISSIONS) THAT YOU HAVE SUBMITTED ON THE SITE OR THAT WHICH IS RELATED TO YOUR ACCOUNT MAY NO LONGER BE ACCESSED BY YOU. Furthermore, Ustream will have no obligation to maintain any information stored in our database related to your account or to forward any information to you or any third party.

Any suspension, termination or cancellation will not affect your obligations to Ustream under these Terms Service (including but not limited to ownership, indemnification and limitation of liability), which by their sense and context are intended to survive such suspension, termination or cancellation.

Copyrighted Materials: No Unauthorized Use.

YOU WILL NOT USE THE SITE OR SERVICES TO TRANSMIT, ROUTE, PROVIDE CONNECTIONS TO OR STORE ANY MATERIAL THAT INFRINGES COPYRIGHTED WORKS OR OTHERWISE VIOLATES OR PROMOTES THE VIOLATION OF THE INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY. Ustream has adopted and implemented a policy that provides for the termination in appropriate circumstances of the accounts of users or Members who repeatedly infringe or are believed to be infringing the rights of copyright holders. Please see the Ustream Copyright and IP Policy for further information.

Intellectual Property Rights and Ownership; Limitations.

Definitions. Certain types of content are made available through the Site. "Content" as used in these Terms of Service means, collectively, the text, data, graphics, images, photos and video files made available by Ustream through the Site and Services, excluding User Submissions. "User Submissions" as used in these Terms of Service means, collectively, the text, data, graphics, images, photos and video files and other content and information which Members or our other third party licensors stream, post, upload and otherwise submit to the Site and Services, including without limitation in broadcast chats, discussion groups, message boards and Member created profile pages. Ustream reserves the right to remove and permanently delete any Content or User Submissions from the Site without notice. We will fully cooperate with any law enforcement authorities or court order requesting or directing us to disclose the identity of anyone posting publishing or otherwise making available any User Submissions, emails or other materials that are believed to violate these Terms of Service.

Content. Subject to your compliance with these Terms of Service, you may access and use the Site, Services, Content and User Submissions for your own personal non-commercial use. Any commercial use of the Site, Services, Content or User Submission requires Ustream prior written approval (e.g., pursuant to additional or separate terms and conditions provided by Ustream). You will not remove, alter or conceal any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Site, Services, Content, User Submissions or related products and services and you will not reproduce, modify, adapt, prepare derivative works based on, perform, display, publish, distribute, transmit, broadcast, sell, license or otherwise exploit the Site, Content, User Submissions (other than your User Submissions). Notwithstanding you may distribute certain Content or User Submissions, solely where Ustream makes the means for distribution of such Content or User Submissions possible via a Ustream Player. Ustream and its licensors own all right, title and interest, including all worldwide intellectual property rights in the Site, Services, Content and the trademarks, service marks and logos contained therein other than your User Submissions.

User Submissions.

License Grant. Ustream does not claim ownership rights in your User Submissions. However, by uploading, streaming, submitting, emailing, posting, publishing or otherwise transmitting any User Submission to Ustream on the Site or to the Services, you hereby grant Ustream a non-exclusive, worldwide, royalty-free, sublicensable, perpetual and irrevocable right and license to use, reproduce, modify, adapt, prepare derivative works based on, perform, display, publish, distribute, transmit, broadcast and otherwise exploit such User Submissions in any form, medium, device or technology now known or later developed, including without limitation on third party websites and platforms where the Services are syndicated. For example, Ustream will have the right to insert, place or include all types of advertisements within or around your User Submissions, including without limitation to running or streaming pre-rolls, mid-rolls, post-rolls, overlays, banners, campaign and companion ads and any other type of advertising units in connection with your User Submission. You represent and warrant that you own or have the necessary licenses, rights, consents and permissions to grant the foregoing licenses to Ustream. You agree to execute and deliver such documents and provide all assistance reasonably requested by Ustream to give to Ustream the full benefit of the rights granted to Ustream by you.

Limitations. You acknowledge and agree that Ustream may, at its option, establish limits concerning User Submissions, including without limitation the maximum number of days that User Submissions will remain on the Site, the maximum size of any files that may be stored on or uploaded to the Site, and the maximum disk space that will be allotted to you for the storage of User Submissions on Ustream's servers. User Submissions that exceed 10GB or any established limit ("Storage Limitation") at any time throughout your use of the Site will be deleted by Ustream, with or without advance notice to you. Ustream will delete the User Submissions (in whole or partial) from your account until your account is below the Storage Limitation. Ustream will have no responsibility or liability for User Submissions that are deleted for exceeding any established limit. Ustream will have no responsibility or liability for and you are solely responsible for creating back-ups of your User Submissions. Ustream reserves the right to change, suspend or discontinue part or all of any limits concerning User Submissions at any time, for any reason, without notice and without explanation.

Disclaimer. Ustream has no ability to control the User Submissions that are uploaded, posted or otherwise transmitted using the Site or Services and does not have any obligation to monitor such User Submissions for any purpose and, as a result, is not responsible for the accuracy, completeness, appropriateness, legality or applicability of the User Submissions or anything said, depicted or written by Members, including without limitation any information obtained by using the Site. Ustream does not endorse any User Submission or any opinion, recommendation, or advice expressed therein and you agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against Ustream with respect thereto. Ustream will have no responsibility or liability to you or any third party as a result of your lifecasting activities and you are solely responsible for any lifecasting you do in connection with or via the Site or Services.

Fees and Payment.

Fees for Access to Content. Access to certain premium content (the "Premium Content") may require a subscription or access fee. Members may be able to access Premium Content by (i) paying a monthly subscription fee to access certain Premium Content for the applicable time period ("Subscription Fee"); or (ii) paying a one-time fee to access certain Premium Content at a designated time ("PayPerView Fee").

Fees for the Services. The Services may be made available in free or paid versions, different service levels and/or different service plans. Not all of the features and functionality of the Services may be available in each version, service level or service plan. Separate or additional usage and/or overage charges may apply to different versions, service levels or service plans. Ustream reserves the right to change, suspend or discontinue part or all of any version, service level or service plan at any time, for any reason, without notice and without explanation.

In order to register for or use a paid version of the Services, or a version, service level or service plan to which usage and/or overage charges may apply, you may be required to provide Ustream with billing and account information ("Billing Information") for a credit card, payment card or another payment system, such as PayPal, for which you are authorized to approve charges (each, a "Payment Source") to allow Ustream to collect payment from you for your use of the Services. You must provide Ustream with true, accurate, current and complete Billing Information and maintain and promptly update your Billing Information to keep it true, accurate, current and complete.

You authorize Ustream to automatically and immediately bill your Payment Source when charges for your use of the paid version of the Services are due, without any further action on your part or other prior notice on the part of Ustream. You assume full responsibility for such charges, even if such charges are declined or not paid by your Payment Source.

If your Payment Source is invalid, if charges billed to your Payment Source are declined or not paid or if you fail to pay charges for a paid version of the Services when due, your account may be downgraded, suspended or cancelled, at Ustream's discretion. If your account is suspended, Ustream may, but is not obligated to, maintain your account and/or related content and information, in order to allow you pay the past-due charges and restore your account. If the charges are not paid, your account may be cancelled.

All fees are non-refundable and non-transferable except as expressly provided in these Terms of Service. Fees and transactions you complete through the Site and Services may include sales tax based on the bill-to address and the applicable sales tax rate in effect at the time and location your transaction is completed. You will be responsible for, and will promptly pay, all taxes and duties of any kind (including but not limited to sales, use and withholding taxes) associated with any fees due by you to Ustream. There is no prorated refund of any fees upon any termination or cancellation. You agree to immediately pay any amounts accrued, but remaining unpaid, as of termination (if any).

Ustream Application License.

License Grant. Subject to your compliance with the terms and conditions of these Terms of Service, Ustream grants you limited, non-exclusive, non-transferable license, without the right to sublicense, to download and install a copy of the Ustream Application onto a single mobile device that you own and control and run such copy of the Ustream Application solely for your internal personal use. Furthermore, (i) with respect to any iTunes Store Sourced App (defined below) you will only use the iTunes Store Sourced App as permitted by the "Usage Rules" set forth in the Apple App Store Terms of Service; and (ii) notwithstanding the foregoing, with respect to any Windows Sourced App (defined below) you may download and install a copy of the Window Sourced App on up to five (5) mobile devices associated with your "Windows Live ID". Ustream reserves all rights in the Ustream Application not expressly granted to you in these Terms of Service.

Restrictions. Except as expressly specified in these Terms of Service, you may not (i) copy or modify the Ustream Application, including, but not limited to adding new features or otherwise making adaptations that alter the functioning of the Ustream Application; (ii) transfer, sell, rent, lease, distribute, sublicense or otherwise assign any rights to, or any portion of, the Ustream Application to any third party; or (iii) make the functionality of the Ustream Application available to multiple users through any means, including, but not limited to distribution of the Ustream Application or by uploading the Ustream Application to a network or file-sharing service or through any hosting, application services provider or any other type of service. The Ustream Application contains trade secrets, and in order to protect those secrets you agree not to disassemble, decompile or reverse engineer the Ustream Application, in whole or in part, or permit or authorize a third party to do so, except to the extent such activities are expressly permitted by law notwithstanding this prohibition. You will comply with any technical restrictions in the Ustream Application that allow you to use the Ustream Application only in certain ways.

Updates and Upgrades; No Obligation. Ustream is not obligated to maintain or support the Ustream Application, or to provide you with updates, upgrades or services related thereto. You acknowledge that Ustream may from time to time in its sole discretion issue updates or upgrades to the Ustream Application, and may automatically update or upgrade the version of the Ustream Application that you are using on your mobile device. You consent to such automatic updating or upgrading on your mobile device, and agree that the terms and conditions of these Terms of Service will apply to all such updates or upgrades.

Term and Termination. The license to the Ustream Application granted under these Terms of Service remains in effect for a period of 75 years, unless earlier terminated by you or Ustream in accordance with this provision. You may terminate the license at any time by destroying all copies of the Ustream Application in your possession or control. Without limiting any other terms of these Terms of Service, the license will automatically terminate without notice from Ustream if you breach any terms of these Terms of Service. Upon any termination of these Terms of Service you must cease all use of the Ustream Application and promptly delete and destroy all copies, full or partial, of the Ustream Application.

Proprietary Rights. The copy of the Ustream Application is licensed, not sold, to you. You agree that Ustream and its licensors own all right, title and interest in and to the Ustream Application, including all intellectual property rights therein, and that Ustream retains ownership of all copies of the Ustream Application even after installation on your mobile device. The Ustream Application is protected by United States copyright law and international treaties. You will not delete or in any manner alter the copyright, trademark, and other proprietary rights notices or markings appearing on the Ustream Application as delivered to you.

Third Party Code. The Ustream Application is distributed with certain independent code that is licensed under open source licenses ("Open Source Code") and such Open Source Code is licensed to you in accordance with the applicable open source licenses. To the extent that any of the terms and conditions of these Terms of Service conflict with any such open source licenses, the conflicting terms and conditions will not apply to the corresponding Open Source Code. You can find information regarding the applicable licenses for the Open Source Code by visiting http://www.ustream.tv/opensource

U.S. Government End Users. The Ustream Application and related documentation are "commercial items" as that term is defined in FAR 2.101, consisting of "commercial computer software" and "commercial computer software documentation," respectively, as such terms are used in FAR 12.212 and DFARS 227.7202. If the Ustream Application and related documentation are being acquired by or on behalf of the U.S. Government, then, as provided in FAR 12.212 and DFARS 227.7202-1 through 227.7202-4, as applicable, the U.S. Government’s rights in the Ustream Application and related documentation will be only those specified in these Terms of Service.

Export Control. You may not use, export, re-export, import, or transfer the Ustream Application except as authorized by United States law, the laws of the jurisdiction in which you obtained the Ustream Application, and any other applicable Laws. In particular, but without limitation, the Ustream Application may not be exported or re-exported: (a) into any United States embargoed countries; or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using the Ustream Application, you represent and warrant that you are not located in any such country or on any such list. You also will not use the Ustream Application for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons.

Ustream Application from iTunes. Without limiting any other terms of these Terms of Service, the following applies to any Ustream Application accessed through or downloaded from the Apple iTunes Store ("iTunes Store Sourced App"):

You acknowledge and agree that (i) these Terms of Service are concluded between you and Ustream only, and not Apple, and (ii) Ustream, not Apple, is solely responsible for the iTunes Store Sourced App and content thereof. Your use of the iTunes Store Sourced App must comply with the App Store Terms of Service.

You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the iTunes Store Sourced App.

In the event of any failure of the iTunes Store Sourced App to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the iTunes Store Sourced App to you and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the iTunes Store Sourced App, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be Ustream’s sole responsibility

You and Ustream acknowledge that, as between Ustream and Apple, Apple is not responsible for addressing any claims of you or any third party relating to the iTunes Store Sourced App or your possession and use of the iTunes Store Sourced App, including, but not limited to: (i) product liability claims; (ii) any claim that the iTunes Store Sourced App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.

You and Ustream acknowledge that, in the event of any third party claim that the iTunes Store Sourced App or your possession and use of that iTunes Store Sourced App infringes that third party’s intellectual property rights, as between Ustream and Apple, Ustream, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by these Terms of Service.

You and Ustream acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of these Terms of Service as related to your license of the iTunes Store Sourced App, and that, upon your acceptance of the terms and conditions of these Terms of Service, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms of Service as related to your license of the iTunes Store Sourced App against you as a third party beneficiary thereof.

Without limiting any other terms of these Terms of Service, you must comply with all applicable third party terms of agreement when using the iTunes Store Sourced App, including, without limitation, any terms and conditions governing your use of a social networking service ("SNS").

If you have any questions, complaints or claims with respect to any iTunes Store Sourced App you may contact Ustream by emailing support@ustream.tv or mailing us at Ustream, Inc. at 410 Townsend Street, Suite 400, San Francisco, CA 94107.

Ustream Application from Windows® Phone Marketplace. Without limiting any other terms of these Terms of Service, the following applies to any Ustream Application accessed through or downloaded from the Windows® Phone Marketplace ("Windows Sourced App"):

You acknowledge that Microsoft, your phone manufacturer, and your network carrier are not responsible for providing support services for the Window Sourced App.

DISCLAIMER OF WARRANTIES. THE WINDOW SOURCED APPLICATION IS LICENSED "AS-IS," "WITH ALL FAULTS" AND "AS AVAILABLE". YOU BEAR THE RISK OF USING THE WINDOW SOURCED APPLICATION. USTREAM ON BEHALF OF ITSELF, MICROSOFT, WIRELESS CARRIERS OVER WHOSE NETWORK THE APPLICATION IS DISTRIBUTED, AND EACH OF MICROSOFT’S RESPECTIVE AFFILIATES, AND SUPPLIERS ("DISTRIBUTORS"), GIVES NOT EXPRESS WARRANTIES, GUARANTEES OR CONDITIONS UNDER OR IN RELATION TO THE WINDOWS SOURCED APP. YOU MAY HAVE ADDITIONAL CONSUMER RIGHTS UNDER YOUR LOCAL LAWS WHICH THESE TERMS OF SERVICE CANNOT CHANGE, TO THE EXTENT PERMITTED UNDER YOUR LOCAL LAWS, DISTRIBUTORS EXCLUDE ANY IMPLIED WARRANTIES OR CONDITIONS, INCLUDING THOSE OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.

LIMITATION ON AND EXCLUSION OF REMEDIES AND DAMAGES. TO THE EXTENT NOT PROHIBITED BY LAW, YOU CAN RECOVER FROM USTREAM ONLY DIRECT DAMAGES UP TO THE AMOUNT YOU PAID FOR THE WINDOWS SOURCED APP. YOU AGREE NOT TO SEEK TO RECOVER ANY OTHER DAMAGES, INCLUDING CONSEQUENTIAL, LOST PROFITS, SPECIAL, INDIRECT OR INCIDENTAL DAMAGES FROM ANY DISTRIBUTOR. This limitation applies (i) to anything related to the Window Sourced Application, services made available through the Window Sourced Application, or content (including code) on third party Internet websites; and (ii) to claims for breach of contract, breach of warranty, guarantee or conditions, strict liability, negligence, or other tort to the extent permitted by applicable law, even if repair, replacement or a refund for the Window Sourced Application does not fully compensate you for any losses; or a Distributor knew or should have known about the possibility of the damages.

Additional Verizon Wireless Terms and Conditions

Verizon Wireless customers who use the Verizon Channel on the Ustream app (the "Verizon Channel"), are subject to the following additional terms and conditions (the"VZW Terms"), which are hereby made an integral part of the Terms of Service. Your use of the Verizon Channel constitutes your binding acceptance of the Terms of Service, including the VZW Terms. If you do not agree to all of the terms and conditions of the Terms of Service and the VZW Terms, then you may not use the Verizon Channel.

Other Agreements; Charges for the Service. In addition to the Terms of Service, you agree and acknowledge that your use of the Verizon Channel is subject to the terms and conditions of your customer agreement with Verizon Wireless. Your use of the Verizon Channel will be billed on a per megabyte basis unless you subscribe to a plan that includes unlimited sending and receiving of data. These megabyte charges do not apply when using the Verizon Channel and Service over a Wi-Fi connection. Taxes and surcharges may apply.

Location Information. You agree and accept that the Verizon Channel may periodically check and disclose your location using GPS. This will serve as your sole notice that your location may be accessed when you use the Verizon Channel and Services. No reminders or further notice will be provided to you. If you do not agree that we may use your location information for these purposes, please do not use the Verizon Channel and Services.

Limited License. Subject to the terms and conditions of the Terms of Service, Verizon Wireless hereby grants to you a nonexclusive, nontransferable, non-sublicenseable license to (i) use the Verizon Channel on the device upon which the Verizon Channel was originally installed; and (ii) to view the Services solely for your individual, private, non-commercial use and enjoyment.

Restrictions on Use. You may not create or use any software included in the Verizon Channel without the express written authorization of Verizon Wireless. You may not modify, reverse engineer, decompile or disassemble the software included in the Verizon Channel. You may not adapt, alter, modify, translate, or create derivative works of such software without the express written authorization of Verizon Wireless. You may not block, disable or otherwise affect any advertising, advertisement banner window, links to other sites and services or other features that constitute part of the Verizon Channel and Services. You may not incorporate, integrate or otherwise include the Verizon Channel, or any portion thereof, into any software, program or product that communicates, accesses or otherwise connects with any other wireless video service. You may not use the Verizon Channel or Services via the Verizon Channel outside of the U.S. (including its territories and possessions). Finally, you may not authorize or assist any third party to do any of the things described in this paragraph.

Ownership. The Verizon Channel is licensed to you, not sold. Verizon Wireless, Ustream and its licensors retain exclusive ownership of all proprietary rights, including all patent, copyright, trade secret, trademark and other intellectual property rights worldwide, in and to the Verizon Channel and Services (including any corrections, bug fixes, enhancements, updates or other modifications thereto). There are no implied licenses under the Terms of Service, and all rights not expressly granted are hereby reserved.

Copyright. All content included in the Verizon Channel or Services, including graphics, text, images, logos, audio and video materials, and software, as well as the compilation of the content, is the property of Verizon Wireless and/or its licensors (the "Materials") and is protected by U.S. and international copyright laws. Any unauthorized use of the Materials may violate copyright, trademark or other laws. Materials are for personal non-commercial use only. Unless otherwise authorized by law, you agree not to alter, download, redistribute, record, delete, falsify, misrepresent, modify, copy, reproduce, republish, upload, post, transmit, distribute or otherwise utilize such Materials without the express, written permission of the copyright holder. Verizon Wireless reserves the right to terminate the accounts of users of the Service who are infringers of the copyrights of others.

Your Representations. You represent and warrant that (i) you will use the Verizon Channel and Services only for lawful purposes and in accordance with the Terms of Service and VZW Terms, (ii) you will not use the Verizon Channel or Services to violate any laws, rules, regulations or ordinances, including, without limitation, any intellectual property laws, privacy laws, computer fraud or abuse statutes or U.S. export control laws, (iii) you will not use the Verizon Channel or Services to violate any right of Verizon Wireless, its licensors or any other third party, including, without limitation, any right of privacy, publicity, copyright or trademark, (iv) you are not located in a country that is subject to a U.S. government embargo or that has been designated by the U.S. government as a "terrorist supporting" country, and (v) you are not listed on any U.S. government list of prohibited or restricted parties.

Privacy Policy. Verizon Wireless believes in protecting user privacy and providing you notice of Verizon Wireless’, its licensors and authorized vendors’ collection and use of data, including personally identifying information. To learn about Verizon Wireless’ information collection and use practices which may apply to your use of the Verizon Channel and Services, please refer to the Verizon Wireless Privacy Policy available at www.verizonwireless.com/privacy. Verizon Wireless and/or its licensors own all data collected through the Service registration process.

Third Party Content. In the course of using the Verizon Channel and Services, you may access content and services provided by third parties. Verizon Wireless is not responsible for the content, products, materials, or practices of any third party. You understand that by using the Verizon Channel and Services you may be exposed to content that you find offensive, indecent or otherwise objectionable. Verizon Wireless makes no warranty, representation, endorsement or guarantee regarding, and accepts no responsibility for, the quality, content, nature or reliability of third party content or services accessible from the Verizon Channel and Services. All such content is provided "as is" for your informational and entertainment purposes only.

Termination. Should you breach this Agreement, your right to use the Verizon Channel and Services shall terminate immediately and without notice. Verizon Wireless may discontinue the Services at any time. In the event of any termination of the Service, you shall have no further right to use the Verizon Channel or Services, the content (including any names or logos) provided therein, but the restrictions on your use of the App and Service shall survive such termination, and you agree to be bound by those terms.

Disclaimer of Warranty. THE VERIZON CHANNEL AND SERVICES ARE PROVIDED "AS IS", WITHOUT WARRANTIES OF ANY KIND BY EITHER VERIZON WIRELESS OR USTREAM, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES THAT THE VERIZON CHANNEL AND SERVICES (INCLUDING ANY INFORMATION OR CONTENT THAT YOU MAY ACCESS THROUGH THE VERIZON CHANNEL AND SERVICE) ARE (A) TIMELY, SECURE, UNINTERRUPTED, ACCURATE OR ERROR-FREE, (B) FREE OF DEFECTS, (C) VIRUS FREE, (D) ABLE TO MEET ANY REQUIREMENTS OF YOU OR ANYONE ELSE, (E) MERCHANTABLE, (F) FIT FOR A PARTICULAR PURPOSE OR (G) NON-INFRINGING, UNLESS SUCH WARRANTIES ARE LEGALLY INCAPABLE OF EXCLUSION.

Limitation of Liability. NEITHER VERIZON WIRELESS, USTREAM, ITS EMPLOYEES, DISTRIBUTORS, VENDORS, SUPPLIERS, LICENSORS, DIRECTORS NOR AGENTS SHALL BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOST PROFITS AND LOST DATA, IN ANY WAY ARISING OUT OF OR RELATING TO THE SALE OF OR USE OR INABILITY TO USE THE VERIZON CHANNEL OR SERVICES, EVEN IN THE EVENT SUCH PARTY HAS BEEN ADVISED AS TO THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES OR JURISDICTIONS, VERIZON WIRELESS AND SUCH OTHER PARTIES’ LIABILITY SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW.

Indemnity. In addition to your indemnification obligations under the Terms of Service, you further agree to defend, indemnify and hold harmless Verizon Wireless, its officers, directors, employees and agents, from and against any claims, actions or demands, including, without limitation, reasonable attorneys’ fees, made by any third party due to or resulting from your violation of this Agreement.

Trademarks. "Verizon Wireless" is the registered trademark of Verizon Wireless. No license is granted to you in the Terms of Service, either expressly or implicitly, to use any trademark, service mark, name or logo used in the Verizon Channel or Services.

Injunctive Relief. You acknowledge that misuse of the Verizon Channel or Service will give rise to irreparable injury to Verizon Wireless and/or its licensors, inadequately compensable in damages. Accordingly, Verizon Wireless and/or its licensor’s may seek and obtain injunctive relief against the breach or threatened breach of your obligations under the Terms of Service, in addition to any other legal remedies that may be available.

Applicable Law. The laws of the State of New York, excluding its conflicts-of-law rules, govern the VZW Terms, and you expressly agree that jurisdiction for any claim or dispute arising under the VZW Terms shall reside in the federal and state courts in New York County, New York.

Interactions between Ustream Users.

You are solely responsible for your interactions (including any disputes) with other Ustream Users. You understand that Ustream does not in any way screen Ustream Users. You are solely responsible for, and will exercise caution, discretion, common sense and judgment in, using the Site and Services and disclosing personal information to other Ustream Users. You agree to take reasonable precautions in all interactions with other Ustream Users, particularly if you decide to meet a Ustream User offline, or in person. Your use of the Site, Services, Content and any other information or other materials made available through the Site or Services is at your sole risk and discretion and Ustream hereby disclaims any and all liability to you or any third party relating thereto. Ustream reserves the right to contact Members, in compliance with applicable law, in order to evaluate compliance with the rules and policies in these Terms of Service. You will cooperate fully with Ustream to investigate any suspected unlawful, fraudulent or improper activity, including, without limitation, granting authorized Ustream representatives access to any password-protected portions of your Ustream account.

Without limiting the terms of Section 5(c)(iii), Ustream may in its sole discretion review and/or record broadcast chat exchanges and/or other communications engaged in via the Site or Services, in accordance with applicable law, in order to evaluate compliance with the rules and policies set forth in these Terms of Service or as otherwise technically necessary.

Obligations for Ustream Users.

General Prohibitions. The Site and Services may be used and accessed for lawful purposes only. You agree to abide by all applicable local, state, national and foreign laws, treatises and regulations in connection with your use of the Site and Services. In addition, without limitation, you agree that you will not do any of the following while using or accessing the Site or Services:

Circumvent, disable or otherwise interfere with security related features of the Site or Services or features that prevent or restrict use or copying of any Content;

Modify, obscure or interfere with any portion or functionality of a Ustream Player, including but not limited to links back to the Site or Services.

Upload, stream, email or otherwise transmit (i) any User Submission to which you do not have the lawful right to copy, transmit and display (including any User Submission that would violate any confidentiality or fiduciary obligations that you might have with respect to the User Submission); (ii) any User Submission for which you do not have the consent or permission of each identifiable person in the User Submission to use the name, voice, signature, photograph, or likeness of each such person (to the extent each is implicated by the User Submission) and such consent or permission is necessary; or (iii) any User Submission that infringes the intellectual property rights or violates the privacy rights of any third party (including without limitation copyright, trademark, patent, trade secret, or other intellectual property right, or moral right or right of publicity);

Use any meta tags or other hidden text or metadata utilizing a Ustream name, trademark, URL or product name;

Upload, stream, email or otherwise transmit any unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, "pyramid schemes" or any other form of solicitation;

Forge any TCP/IP packet header or any part of the header information in any posting or in any way use the Site or Services to send altered, deceptive or false source-identifying information;

Upload, stream, email, or otherwise transmit, via the Site or Services, any User Submissions that are unlawful, obscene, harmful, threatening, harassing, defamatory or hateful or that contain objects or symbols of hate, invade the privacy of any third party, contain nudity (including without limitation any pornography, erotica, child pornography or child erotica), are deceptive, threatening, abusive, inciting of unlawful action, defamatory, libelous, vulgar or violent or constitute hate speech or are otherwise objectionable in the opinion of Ustream;

Upload, stream, email, or otherwise transmit any User Submissions that contain software viruses or any other computer code, files, or programs designed to (i) interrupt, destroy or limit the functionality of any computer software; or (ii) interfere with the access of any user, host or network, including without limitation sending a virus, overloading, flooding, spamming or mail-bombing the Site;

Upload, stream, email or otherwise transmit any User Submissions that include code that is hidden or otherwise surreptitiously contained within the images, audio or video of any User Submissions that is unrelated to the immediate, aesthetic nature of the User Submissions;

Interfere with or disrupt (or attempt to interfere with or disrupt) any web pages available on the Site or Services, servers or networks connected to the Site or Services or the technical delivery systems of Ustream's providers or disobey any requirements, procedures, policies or regulations of networks connected to the Site or Services;

Attempt to probe, scan or test the vulnerability of any Ustream system or network or breach or impair or circumvent any security or authentication measures protecting the Site or Services (including any Content or User Submissions available in a Ustream Player);

Attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Site or Services;

Attempt to access, search or meta-search the Site or Services with any engine, software, tool, agent, device or mechanism other than software and/or search agents provided by Ustream or other generally available third party web browsers (such as Microsoft Internet Explorer, Mozilla Firefox, Safari, or Opera), including without limitation any software that sends queries to the Site or Services to determine how a website or web page ranks.

Collect or store personal data about other users without their express permission;

Impersonate or misrepresent your affiliation with any person or entity, through pretexting or some other form of social engineering or otherwise commit fraud;

Use the Site or Services in any manner not permitted by these Terms of Service; or

Encourage or instruct any other individual to do any of the foregoing or to violate any term of these Terms of Service.

Obligations to Third Parties. If you have obligations to any third party, as a non limiting example, such as under the terms, conditions or policies of a SNS, you and not Ustream are responsible for your compliance with those obligations. By allowing you to use the Site and Services, Ustream does not suggest, warrant or guaranty that your access to any third party service in connection with your use of the Site or Services is permitted by that third party service, nor does Ustream suggest, warrant or guaranty that your use complies with any laws or regulations that may apply to your use of any third party service. Ustream is not liable for your failure to comply with any applicable local, state, national and foreign laws, treaties and regulations or any contracts, rules, policies or procedures applicable to your activities while you use the Site and Services or third party service.

Sweepstakes and Contests.

Ustream may operate sweepstakes, contests and similar promotions (collectively, "Promotions") through the Site or Services. You should carefully review the rules (e.g., the "Official Rules") of each Promotion in which you participate through the Site or Services, as they may contain additional important information about Ustream's rights to and ownership of the submissions you make as part of the Promotions and as a result of your participation in such Promotion. To the extent that the terms and conditions of such Official Rules conflict with these Terms of Service, the terms and conditions of such Official Rules will control.

Disclaimer of Warranties.

Your use of the Site, Services, Content and User Submissions is at your sole discretion and risk. The Site, Services, Content and User Submissions, and all materials, information, products and services included therein, are provided on an "AS IS" and "AS AVAILABLE" basis without warranties of any kind. USTREAM EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, RELATING TO THE SITE, SERVICES, CONTENT AND USER SUBMISSIONS, INCLUDING WITHOUT LIMITATION THE WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF PROPRIETARY RIGHTS, COURSE OF DEALING OR COURSE OF PERFORMANCE. Ustream disclaims any warranties: (i) regarding the security, accuracy, reliability, timeliness and performance of the Site or Services; or (ii) that the Site, Services, Content and User Submissions will be error-free or that any errors will be corrected. No advice or information, whether oral or written, obtained by you from Ustream, will create any warranty not expressly stated in these Terms of Service. Some states or jurisdictions do not allow the exclusion of certain warranties. Accordingly, some of the above exclusions may not apply to you.

Limitation of Liability.

IN NO EVENT WILL USTREAM, ITS OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS, BE LIABLE TO YOU FOR ANY DAMAGES WHATSOEVER, INCLUDING WITHOUT LIMITATION, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF THE SITE, SERVICES, CONTENT AND USER SUBMISSIONS WHETHER THE DAMAGES ARE FORESEEABLE AND WHETHER OR NOT USTREAM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION OF LIABILITY WILL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION AND IN NO EVENT WILL USTREAM'S CUMULATIVE LIABILITY TO YOU EXCEED $100.

Indemnification.

You agree to defend, indemnify, and hold Ustream, its officers, directors, employees and agents, harmless from and against any claims, liabilities, damages, losses, and expenses, including without limitation reasonable attorney's fees and costs, arising out of or in any way connected with (i) your access to or use of the Site, Services, Content and User Submissions; (ii) your violation of these Terms of Service; (iii) your violation of any third party right, including without limitation any intellectual property right, publicity, confidentiality, property or privacy right; or (iv) any claim that one of your User Submissions caused damage to a third party, including without limitation claims that your User Submissions are infringing.

Third Party Links.

The Site and Services may provide links to third party websites or resources from the Site or Services. You acknowledge and agree that Ustream is not responsible or liable for the availability or accuracy of, and Ustream does not endorse, such websites or resources or the content, products, or services on or available from such websites or resources. You acknowledge sole responsibility for and assume all risk arising from your use of any such websites or resources

Feedback and Independent Development.

Your feedback is welcome and encouraged. You may submit feedback by emailing us at feedback@ustream.tv or via other portions of the Site. You agree, however, that: if you elect to provide suggestions, ideas, proposals, concepts or other feedback to us (whether written, verbal or in any other format or manner) in connection with these Terms of Service or use of our Site or Services ("Feedback"), you acknowledge and agree that we have no obligation (whether of confidentiality, compensation or otherwise) with respect to such Feedback and we will be free to use and exploit the same in any manner without restriction of any kind. You acknowledge and agree that all Feedback will be the sole and exclusive property of Ustream. You hereby irrevocably transfer and assign to Ustream and agree to irrevocably transfer and assign to Ustream all of your right, title, and interest in and to all Feedback, including all Intellectual Property Rights therein. At Ustream’s request and expense, you will execute documents and take such further acts as Ustream may reasonably request to assist Ustream to acquire, perfect and maintain its intellectual property rights and other legal protections for the Feedback. Further, you acknowledge and agree that Ustream is engaged in creating and developing its own programs, plans and projects so it is possible that we are already independently developing products services, plans and projects that are quite similar and/or competitive with your Feedback (including the concepts contemplated by or embodied therein). Nothing in these Terms of Service will be construed as a representation or agreement that we will not develop or have developed, distribute, market or promote applications, services, products, concepts, systems or techniques that are similar to and/or compete with the applications, services, products, concepts, systems or techniques contemplated by or embodied in any Feedback or compensate you or provide you with any input or response with regard to your Feedback.

General.

No Assignment. You will not assign these Terms of Service or assign any rights or delegate any obligations hereunder, in whole or in part, whether voluntarily or by operation of law, without the prior written consent of Ustream. Any purported assignment or delegation by you without the appropriate prior written consent of Ustream will be null and void. Ustream may assign these Terms of Service or any rights hereunder without your consent.

Relationship of the Parties. For purposes of these Terms of Service, including if you become a Member and create an account, you are not an employee or agent of Ustream, and you will not represent that you are any of the foregoing. Each party will be independent and act independently and not as a contractor, partner, joint venturer, agent, employee or employer of the other and will not bind or attempt to bind the other to any contract. Each party will be solely responsible for their own costs and expenses incurred in the performance of their obligations under these Terms of Service, including without limitation any expenses associated with the implementation of these Terms of Service.

Severability and Waiver. In the event that any provision in these Terms of Service is held to be invalid or unenforceable, the remaining provisions will remain in full force and effect. The failure of Ustream to enforce any right or provision of these Terms of Service will not be deemed a waiver of such right or provision.

Force Majeure. Ustream will not be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder on account of events beyond its reasonable control, which may include, without limitation, denial-of-service attacks, strikes, shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, terrorism, governmental action, labor conditions, earthquakes, material shortages, extraordinary Internet congestion or extraordinary connectivity issues experienced by major telecommunications providers and unrelated to Ustream infrastructure or connectivity to the Internet, or failure at Ustream co-location facility, (each a "Force Majeure Event"). Upon the occurrence of a Force Majeure Event, Ustream will be excused from any further performance of its obligations effected by the Force Majeure Event for so long as the event continues.

Governing Law. These Terms of Service and the relationship between you and Ustream will be governed by the laws of the State of California without regard to its conflict of law provisions. You and Ustream agree to submit to the personal and exclusive jurisdiction of the courts located in San Francisco County, California.

Entire Agreement. These Terms of Service are the entire and exclusive agreement between Ustream and you regarding the Site, Content, and Services and supersede and replace any prior agreements between Ustream and you regarding the Site and Services.

Notice. Any notice or other communication to be given hereunder will be in writing and given (a) by Ustream via email (in each case to the address that you provide), (b) a posting on the Site or (c) by you via email to billing@ustream.tv or to such other addresses as Ustream may specify in writing. The date of receipt will be deemed the date on which such notice is transmitted.

Questions. If you have questions about these Terms of Service or would like to request a copy of these Terms of Service or any other records relating to these Terms of Service of your use of the Site and Services, please contact Ustream at billing@ustream.tv or by sending a written request to Ustream, Inc. at 410 Townsend Street, Suite 400, San Francisco, CA 94107.